St. Louis & G. Ry. Co. v. Cape Girardeau & Thebes B.T.Ry.Co.

• Decision Date: 28 May 1907
• Citation: 102 S.W. 1042,126 Mo. App. 272
• Court: Missouri Court of Appeals
• Parties: ST. LOUIS & G. RY. CO. v. CAPE GIRARDEAU & THEBES BRIDGE TERMINAL RY. CO.

102 S.W. 1042

126 Mo. A. 272

ST. LOUIS & G. RY. CO. v. CAPE GIRARDEAU & THEBES BRIDGE TERMINAL RY. CO.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

1. COSTS—RIGHT TO COSTS—ALLOWANCE.

The right to costs does not exist at common law, and the courts may not allow costs in law cases unless expressly provided by statute.

2. EMINENT DOMAIN—PROCEEDINGS—DISMISSAL—COSTS.

Rev. St. 1899, § 1269 [Ann. St. 1906, p. 1043], provides that the cost of a proceeding by a railroad company to condemn land for a right of way shall be paid by the company up to and including the filing and copying of the report of commissioners, and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may seem just. Held, that a railroad company, having commenced condemnation proceedings, was entitled to dismiss the same as a matter of right, subject only to the taxation of legal costs.

3. SAME—EXPENSES OF ADVERSE PARTY.

The court, on dismissal of condemnation proceedings by a railroad company, had no power, on motion to tax costs, to require the railroad company to pay the costs and expenses, including attorney's fees, of the adverse party which the latter could recover only by a separate suit.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Application by the St. Louis & Gulf Railway Company against the Cape Girardeau & Thebes Bridge Terminal Railway Company. Plaintiff voluntarily dismissed a proceeding, after which costs, including defendant's expenses and attorney's fees, were taxed against defendant on motion, from which judgment plaintiff appeals. Reversed and remanded.

Moses Whybard, for appellant. Giboney Houck, for respondent.

BLAND, P. J.

On March 29, 1904, appellant presented to Hon. H. C. Riley, judge of the Scott circuit court, a petition asking for the condemnation of a strip of land for a right of way near and leading to a landing on the Mississippi river, in Scott county, known as Manning's Landing, for the purpose of reaching the terminus of other railroads at the city of Thebes, and over which the railroad company would secure an incline to the Mississippi river for the purpose of transferring its cars to ferryboats to be carried across said river. The strip of land sought to be condemned had been secured by the respondent for railroad purposes. On the presentation of the petition to Judge Riley, he set April 16, 1904, as the date, and New Madrid as the place for the hearing of the petition. Respondent was duly notified of this setting, and on April 16, 1904, appeared at New Madrid for the purpose of contesting the petition. Judge Riley did not appear, and the petition was not then heard. The petition was filed in the circuit court of Scott county and summons was issued and served on respondent. The case was returnable at the April term, 1904, of the Scott circuit court, and on the first day of the term, before any answer or other pleadings were filed by respondent, appellant voluntarily dismissed the proceeding. On the succeeding day of the term respondent, without moving the court to reinstate the case, filed its motion therein, asking the court to tax attorney's fees and other costs alleged to have accrued in the case against appellant. Appellant filed a motion to strike out the motion to tax costs. The matter was continued to the April term, 1905, at which term the motion to strike out was overruled, and the motion to tax costs was taken up, evidence in support thereof adduced by respondent, and the matter submitted to the court, who held the motion under advisement until the October term, 1905, at which term the court sustained the motion to tax witness fees, expenses, and attorney's fees, and rendered judgment on the motion for $150, from which judgment the appeal is prosecuted.

The right to recover costs does not exist at common law, and the courts in this state may not allow costs in law cases except when they are expressly provided for by statute. State ex rel. v. Seibert, 130 Mo. 202, 32 S. W. 670; Hoover v. Railway, 115 Mo. 77, 21 S. W. 1076; City of St. Louis v. Meintz, 107 Mo 611, 18 S. W. 30; Houts v. McCluney, 102 Mo. 13, 14 S. W. 766; Shed v. Railroad, 67 Mo. 687; Steele v. Wear. 54 Mo. 531; Baldwin v. Boulware, 82 Mo. App. 321; Wilson v. Ruthrauff, 87 Mo. App. 226. It is only in equity cases the courts have any discretion in respect to allowance of costs. Supreme Council v. Nidelet, 85 Mo. App. 283. Section 1269, Rev. St. 1899 [Ann. St. 1906, p. 1043], in respect to costs in condemnation proceedings brought by railroad corporations, provides: "The cost of the proceeding to appropriate the right-of-way shall be paid by the company seeking the appropriation, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceedings." In North Missouri Railroad Co. v. Lackland, 25 Mo. 515, commissioners were appointed by agreement to assess the damages and file their report, whereupon the railroad company dismissed the proceedings. Lackland moved the court to reinstate the case, which was done, in the absence of counsel for the railroad company. After getting the case reinstated, Lackland moved the court for a confirmation of the report. The railway company subsequently appeared and moved the court to dismiss, which motion the court overruled and confirmed the commissioners' report. On appeal, the court held the railroad company could dismiss, and reversed and remanded the cause. In the closing part of the opinion, Judge Napton, at pages 533, 534, said: "In these cases concerning a condemnation of land, the act provides that the court shall adjudge the costs of the proceeding according to equity. It is obvious that, if the company is permitted to discontinue, all the costs and...